Gathungu (Suing as the Personal Representative of the Estate of Newton Gathungu Kibuchi) v Embakasi Ranching Company Limited & 3 others
The bottom line
#Kenya's Court of Appeal refused to pause a land trial, confirming that stopping court proceedings on appeal is only granted in rare, exceptional cases.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appeal is arguable under rule 5(2)(b) of the Court of Appeal Rules
- 2.Whether the appeal, if successful, would be rendered nugatory absent a stay of proceedings in ELC Case No. 2 of 2022
Key legal issues
#Whether the applicant satisfied the rule 5(2)(b) threshold for stay of proceedings
The applicant failed: the appeal was not arguable in the Court's view, and no exceptional circumstances justified staying proceedings
The Court distinguished stay of proceedings from stay of execution, holding the threshold higher because a stay derails pending proceedings and interferes with trial court schedules and the respondent's right to expeditious hearing under Article 159(2)(b). The impugned order was interlocutory and discretionary; the trial was still at its infancy; and costs could remedy any prejudice if the appeal later succeeded.
Whether the appeal would be rendered nugatory absent a stay
It would not, since if the appeal succeeded after the trial concluded, the appropriate remedy would be an order for costs
Relying on Silverstein v Atsango Chesoni, the Court held that where the trial proceeds and the interlocutory appeal later succeeds, the proceedings would have been rendered unnecessary but costs would remedy that; the appeal would not be rendered nugatory. The Court also formed a dim view of the appeal's prospects given the trial court's prior order barring further filings.
Legal principles established
#- The threshold for a stay of proceedings pending appeal is higher than for a stay of execution, because staying proceedings derails pending litigation and may curtail the respondent's right to a hearing without delay
- A stay of proceedings is a serious judicial action to be exercised sparingly and only in exceptional cases, weighing the competing claims of the parties in line with the overriding objective and proportionality
- Where an appeal challenges an interlocutory discretionary ruling and the trial can proceed, an adverse interlocutory outcome can be remedied by costs and the appeal will not be rendered nugatory
Court orders
#- 1.The application for stay of proceedings dated 19th September 2025 is dismissed with costs to the 3rd and 4th respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Nairobi
- ELC Case No. 2 of 2022
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules; sections 3A and 3B of the Appellate Jurisdiction Act
Relief refused
#Stay of all and further proceedings in Milimani ELC Case No. 2 of 2022 pending the hearing and determination of the appeal
The appeal's prospects were dim, no exceptional circumstances existed, and the impugned order was an interlocutory exercise of judicial discretion
Costs
Application dismissed with costs to the 3rd and 4th respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
in applications where the stay sought is to suspend the proceedings before the trial court, the threshold is slightly higher than in applications for stay of execution pending appeals.
This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases
We have said enough to show that this application is unmerited. It is dismissed with costs to the 3rd and 4th respondents.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gathungu (Suing as the Personal Representative of the Estate of Newton Gathungu Kibuchi) v Embakasi Ranching Company Limited & 3 others", Case Analysis (2025). Civil Appeal (Application) E689 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2321/eng@2025-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.